The Americans With Disabilities Act:
Applying Performance And Conduct Standards To Employees With Disabilities

On September 25, 2008, President George W. Bush signed into law the ADA Amendments Act of 2008. See the list of specific changes to the ADA
made by the ADA Amendments Act. As a result of this new legislation,
which will go into effect on January 1, 2009, minor changes have been
made to this document. These changes are found in endnotes 5 and 11 and
do not affect the overall content or guidance in this document.

A core function for any supervisor is managing employee performance.
Performance management, if done effectively, can help avoid
discrimination, in addition to furthering an employer’s business
objectives. “Performance management systems that involve explicit
performance expectations, clear performance standards, accurate
measures, and reliable performance feedback, and the consistent
application of these standards [to all employees], help to reduce the
chances of discriminatory ratings.”1
Additionally, employees work most effectively when they clearly
understand what is expected of them and know that their performance will
be measured against a standard that is fair and applied even-handedly.
The same principles apply to workplace rules concerning employee
conduct.

Title I of the Americans with Disabilities Act (ADA) and
Section 501 of the Rehabilitation Act, which prohibit employment
discrimination against qualified individuals with disabilities,
generally do not impinge on the right of employers to define jobs and to
evaluate their employees according to consistently applied standards
governing performance and conduct. Under both laws, employees with
disabilities must meet qualification standards that are job-related and
consistent with business necessity and must be able to perform the
“essential functions” of the position, with or without reasonable
accommodation.

Although, an employee’s disability typically has no bearing on
performance or conduct, sometimes an individual’s disability may
contribute to performance or conduct problems. When this is the case, a
simple reasonable accommodation often may be all that is needed to
eliminate the problem. However, EEOC continues to receive questions
from both employers and employees about issues such as what steps are
appropriate where a disability is causing – or seems to be causing – a
performance or conduct problem, when a request for accommodation should
be made, and when an employer can properly raise the issue of an
employee’s disability as part of a discussion about performance or
conduct problems. Even when the disability is not causing the
performance or conduct problem, some employers still have questions
about what action they can take in light of concerns about potential ADA
violations.

This publication discusses relevant ADA requirements, provides
practical guidance, and offers examples to demonstrate the
responsibilities of both employees and employers when performance and
conduct issues arise. It also discusses the role of reasonable
accommodation in preventing or addressing performance or conduct
problems, including the relationship between reasonable accommodation
and disciplinary action and the circumstances in which an accommodation
may or may not have to be granted.2 Many
of the examples in this document are based on actual cases or on
specific scenarios presented to EEOC, and many of the points of
“practical guidance” respond to questions received from both employers
and individuals with disabilities.

Title I of the ADA covers private, state, and local government
employers with 15 or more employees; Section 501 of the Rehabilitation
Act of 1973 covers federal agencies. The statutes contain identical
anti-discrimination provisions.3

The ADA prohibits discrimination against applicants and
employees who meet the statute’s definition of a “qualified individual
with a disability.”4 The ADA defines a “disability” in three ways:

A physical or mental impairment that substantially limits one or more of the major life activities of an individual

A “qualified” individual with a disability
can (1) satisfy the requisite skill, experience, education and other
job-related requirements and (2) perform the essential functions of a
position with or without reasonable accommodation.6

Job-related requirements, also known as “qualification standards,” may include the following:

Possessing specific training

Possessing specific licenses or certificates

Possessing certain physical or mental abilities (e.g., meeting vision, hearing, or lifting requirements; showing an ability to run or climb; exercising good judgment)

Meeting health or safety requirements

Demonstrating certain attributes such as the ability to work with other people or to work under pressure.7

Most jobs require that employees perform both “essential functions” and “marginal functions.” The “essential functions”
are the most important job duties, the critical elements that must be
performed to achieve the objectives of the job. Removal of an essential
function would fundamentally change a job. Marginal functions are
those tasks or assignments that are tangential and not as important.8

If an applicant or employee cannot meet a specific
qualification standard because of a disability, the ADA requires that
the employer demonstrate the importance of the standard by showing that
it is “job-related and consistent with business necessity.”9
This requirement ensures that the qualification standard is a
legitimate measure of an individual’s ability to perform an essential
function of the specific position the individual holds or desires.10
If an employer cannot show that a particular standard is “job-related
and consistent with business necessity,” the employer cannot use the
standard to take an adverse action against an individual with a
disability.

Employers may have to provide a “reasonable accommodation”
to enable an individual with a disability to meet a qualification
standard that is job-related and consistent with business necessity or
to perform the essential functions of her position.11
A reasonable accommodation is any change in the work environment or in
the way things are customarily done that enables an applicant or
employee with a disability to enjoy equal employment opportunities. An
employee generally has to request accommodation, but does not have to
use the term “reasonable accommodation,” or even “accommodation,” to put
the employer on notice. Rather, an employee only has to say that she
requires the employer to provide her with an adjustment or change at
work due to a medical condition.12 An
employer never has to provide an accommodation that would cause undue
hardship, meaning significant difficulty or expense, which includes
removing an essential function of the job.13

Employers typically establish job-related requirements, the
specific tasks or assignments that an employee must perform, and methods
to evaluate performance. Evaluation criteria might take into account
how well an employee is performing both essential and marginal functions
and whether the employee is meeting basic job requirements (e.g., working well with others or serving customers in a professional manner). Employers might also enforce conduct standards (e.g.,
rules prohibiting destruction of company property or the use of company
computers to access pornography). Certain performance and conduct
standards will apply to all employees working for a company,
organization, or government agency; others might only apply to certain
offices or jobs within an entity.

1. May an employer apply the same quantitative and
qualitative requirements for performance of essential functions to an
employee with a disability that it applies to employees without
disabilities?

Yes. An employee with a disability must meet the same
production standards, whether quantitative or qualitative, as a
non-disabled employee in the same job.14
Lowering or changing a production standard because an employee cannot
meet it due to a disability is not considered a reasonable
accommodation.15 However, a reasonable accommodation may be required to assist an employee in meeting a specific production standard.

Practical Guidance: It is advisable for
employers to give clear guidance to an employee with a disability (as
well as all other employees) regarding the quantity and quality of work
that must be produced and the timetables for producing it.

Example 1: A federal agency requires all of
its investigators to complete 30 investigations per year in addition to
other responsibilities. Jody’s disability is worsening, causing her
increased difficulty in completing 30 investigations while also
conducting training and writing articles for a newsletter. Jody tells
her supervisor about her disability and requests that she be allowed to
eliminate the marginal functions of her job so that she can focus on
performing investigations. After determining that conducting trainings
and writing articles are marginal functions for Jody and that no undue
hardship exists, the agency reassigns Jody’s marginal functions as a
reasonable accommodation.

Example 2: Robert is a sales associate for a
pharmaceutical company. His territory covers a 3-state region and he
must travel to each state three times a year. Due to staff cutbacks,
the company is increasing the number of states for each salesperson from
three to five. Robert explains to his manager that due to his
disability he cannot handle the extra two states and the increased
traveling, and he asks that he be allowed to have responsibility only
for his original three states. The company may refuse this request for
accommodation because it conflicts with the new production standard.
However, the company should explore with Robert whether there is any
reasonable accommodation that could enable him to service five states,
and if not, whether reassignment is possible.

Example 3: A computer programmer with a known
disability has missed deadlines for projects, necessitating that other
employees finish his work. Further, the employee has not kept abreast
of changes in the database package, causing him to misinterpret as
system problems changes that he should have known about. The employee
is placed on a Performance Improvement Plan, but his performance does
not improve and he is terminated. At no time does the employee request a
reasonable accommodation (i.e., inform the employer that he
requires an adjustment or change as a result of a medical condition).
The termination is justified as long as the employer holds the employee
to the same performance standards as other programmers.16

2. May an employer use the same evaluation criteria for employees with disabilities as for employees without disabilities?

Yes. An employer should evaluate the job performance of an
employee with a disability the same way it evaluates any other
employee’s performance.17

Practical Guidance: An accurate
assessment of the employee’s performance may, in some cases, alert the
employee that his disability is contributing to the problem. This may
lead the employee to request reasonable accommodation to address the
problem and improve performance, which can benefit both the employee and
the employer.18

Example 4: Last year Nicole received an
“above average” review at her annual performance evaluation. During the
current year Nicole had to deal with a number of medical issues
concerning her disability. As a result, she was unable to devote the
same level of time and effort to her job as she did during the prior
year. She did not request reasonable accommodation (i.e., inform
the employer that she requires an adjustment or change as a result of a
medical condition). The quantity and quality of Nicole’s work were not
as high and she received an “average” rating. The supervisor does not
have to raise Nicole’s rating even though the decline in performance was
related to her disability.19

3. May a supervisor require that an employee with a disability perform a job in the same manner as a non-disabled employee?

Not necessarily. In many instances, an essential function can
be performed in different ways (including with reasonable
accommodation). An employee who must use an alternative method of
performance because of a disability must be evaluated accordingly.20 However, an employer is not required to allow use of an alternate method that would impose an undue hardship.

Example 5: One of Rhoda’s essential functions
is providing training. Because she is deaf and, as a result, has
difficulty speaking, Rhoda uses a sign language interpreter to voice for
her. Generally, Rhoda’s supervisor evaluates his employees on the use
of their voices – whether they speak with a monotone or use their voices
to show interest and enthusiasm. Rhoda’s presentation cannot be
measured in this way. However, there are alternative ways to measure
how she conveys her message, including body language, facial expression,
and the words she uses.

Example 6: Daniel works as a millwright, and
an essential function of his job is repairing and maintaining equipment.
Most of the equipment is accessible only by climbing ladders and
steps. Due to a recent disability, Daniel no longer can climb and must
work only at ground level. The location of the equipment does not allow
alternative means to elevate Daniel (e.g., using a cherry
picker). With no reasonable accommodation possible, Daniel cannot
repair the equipment (an essential function). Daniel is not “qualified”
to remain in this position and the employer should explore whether it
can reassign him as a reasonable accommodation.21

4. If an employer gives a lower performance rating to an
employee and the employee responds by revealing she has a disability
that is causing the performance problem, may the employer still give the
lower rating?

Yes. The rating reflects the employee’s performance regardless of what role, if any, disability may have played. [See Example 4.]

Practical Guidance: If an employee states
that her disability is the cause of the performance problem, the
employer could follow up by making clear what level of performance is
required and asking why the employee believes the disability is
affecting performance. If the employee does not ask for an
accommodation (the obligation generally rests with the employee to ask),
the employer may ask whether there is an accommodation that may help
raise the employee’s performance level.22

5. Must an employee with a disability ask for a reasonable accommodation at a certain time?

No. The ADA does not compel employees to ask for accommodations at a certain time.23
Employees may ask for reasonable accommodation before or after being
told of performance problems. Sometimes, an employee may not know or be
willing to acknowledge that there is a problem requiring accommodation
until the employer points out deficiencies in performance.

Practical Guidance: Ideally, employees
will request reasonable accommodation before performance problems arise,
or at least before they become too serious.24
Although the ADA does not require employees to ask for an
accommodation at a specific time, the timing of a request for reasonable
accommodation is important because an employer does not have to rescind
discipline (including a termination) or an evaluation warranted by poor
performance.25

Example 7: Nasser, an employee at a nonprofit
organization, recognizes soon after he begins working that he is having
difficulty following conversations at meetings because of his
deteriorating hearing. Nasser’s hearing aid helps him when talking
directly to one person, but not when he is in a large room with many
people participating in a discussion. Nasser believes that he could
follow the group discussions if the employer provided a portable
assistive listening device. He tells his supervisor that a simple
assistive listening system would include an FM transmitter and
microphone that could be placed at the center of a conference table and
an FM receiver and headset that he would wear. The system would amplify
speakers’ voices over the headset without affecting the way other
meeting participants would hear the conversation. The employer provides
the reasonable accommodation and Nasser now performs all of his job
duties successfully.

Example 8: A county government employee does
not disclose her chronic fatigue syndrome, even when she begins having
performance problems that she believes are disability-related. Her
supervisor counsels her about the performance problems, but they
persist. The supervisor warns that if her work does not show
improvement within the next month, she will receive a written warning.
At this point, the employee discloses her disability and asks for
reasonable accommodation.

The supervisor should discuss the request and how the proposed
accommodation will help improve the employee’s performance. The
supervisor also may ask questions or seek medical documentation that the
employee has a disability. The supervisor does not need to rescind his
oral warning or his requirement that the employee’s performance must
improve. However, delaying the one-month period to evaluate the
employee’s performance pending a decision on her request for reasonable
accommodation will enable the employer to assess the employee’s
performance accurately.

Example 9: An employee with a small
advertising firm has a learning disability. Because the employee had a
bad experience at a prior job when he requested accommodation, he
decides not to disclose his disability or ask for any accommodations
during the application process or once he begins working. Performance
problems soon arise, and the employee’s supervisor brings them to the
employee’s attention. He tries to solve the problems on his own, but
cannot. The firm follows its policy on counseling and disciplining
employees who are failing to meet minimum requirements, but these
efforts are unsuccessful. When the supervisor meets with the employee
to terminate his employment, the employee asks for a reasonable
accommodation.

The employer may refuse the request for reasonable accommodation and
proceed with the termination because an employer is not required to
excuse performance problems that occurred prior to the accommodation
request. Once an employer makes an employee aware of performance
problems, the employee must request any accommodations needed to rectify
them. This employee waited too long to request reasonable
accommodation.26

6. What should an employer do if an employee requests an
accommodation for the first time in response to counseling or a low
performance rating?

When an employee requests a reasonable accommodation in
response to the employer’s discussion or evaluation of the person’s
performance, the employer may proceed with the discussion or evaluation
but also should begin the “interactive reasonable accommodation process”
by discussing with the employee how the disability may be affecting
performance and what accommodation the employee believes may help to
improve it.27 Employers cannot refuse to
discuss the request or fail to provide a reasonable accommodation as
punishment for the performance problem. If a reasonable accommodation
is needed to assist an employee in addressing a performance problem, and
the employer refuses to provide one, absent undue hardship, the
employer has violated the ADA.

The employer may seek appropriate medical documentation to
learn if the condition meets the ADA’s definition of “disability,”
whether and to what extent the disability is affecting job performance,
and what accommodations may address the problem.28 The employer may also suggest possible accommodations.29

The employee may need reasonable accommodation, for example,
to enable him to meet a production standard or to perform an essential
function. Where a lower performance rating results from an inability to
perform a marginal function because of the disability, the appropriate
accommodation would be to remove the marginal function (and perhaps
substitute one that the employee can perform).

Practical Guidance: Employers find the
“interactive process” helpful in clarifying what accommodation an
employee is seeking and how it would help to correct a performance
problem. The topics for discussion will vary depending on what
information an employer requires to respond to a request for reasonable
accommodation, but failing to raise questions may leave an employer at a
disadvantage in making an informed decision. Furthermore, an employer
might learn that alternative accommodations may be effective in meeting
the employee’s needs.

When an employee does not give notice of the need for
accommodation until after a performance problem has occurred, reasonable
accommodation does not require that the employer:

give an evaluation that does not reflect the employee’s actual performance.30

Example 10: Odessa does not disclose her
learning disability, even when she begins having performance problems
that she believes are disability-related. Her supervisor notices the
performance problems and counsels Odessa about them. At this point,
Odessa discloses her disability and asks for a reasonable accommodation.
The supervisor denies the request immediately, explaining, “You should
not have waited until problems developed to tell me about your
disability.” Odessa’s delay in requesting an accommodation does not
justify the employer’s refusal to provide one. If a reasonable
accommodation will help improve the employee’s performance (without
posing an undue hardship), the accommodation must be provided.31

Example 11: A federal employee is put on a
60-day Performance Improvement Plan (PIP). In response, the employee
requests a reasonable accommodation. The supervisor postpones the start
of the PIP and immediately discusses the request with the employee,
enlisting the agency’s Disability Program Manager (DPM) in the
interactive process. The supervisor and DPM determine that a reasonable
accommodation might help address the employee’s performance problems.
The supervisor arranges for the reasonable accommodation and the 60-day
PIP commences.

The employer did not have to cancel the PIP because reasonable
accommodation never requires excusing poor performance or its
consequences. However, the fact that the employee did not ask for an
accommodation until being placed on a PIP does not relieve the agency of
its obligation to provide reasonable accommodation if the employee has a
disability and an accommodation will help improve her performance.32

The temporary postponement of the PIP to process the request for a
reasonable accommodation ensures that, if a reasonable accommodation is
needed, the employee will have an equal opportunity to improve her
performance.33 If the employer determines that the employee is not entitled to a reasonable accommodation (e.g., the employee does not have a “disability”), the employee should be so informed and the PIP should begin.

Requests for reasonable accommodation should be handled expeditiously,
in particular because unnecessary delays in determining or providing an
effective accommodation may violate the ADA.34
In this Example the supervisor recognized the need to address the
request promptly so as not to unnecessarily delay the commencement of
the PIP.35

Practical Guidance: An employer may need
to determine what happens to an employee while it is handling a request
for accommodation. For example, an employer might require an employee
to perform only those functions of the job for which accommodation is
not needed while processing the request. In other situations, it may be
appropriate for an employee to take leave.

7. May an employer withdraw a telework arrangement or a
modified schedule provided as a reasonable accommodation because the
employee is given an unsatisfactory performance rating?

No. An employer may not withdraw a reasonable accommodation
as punishment for the unsatisfactory performance rating. Simply
withdrawing the telework arrangement or a modified schedule is no
different than discontinuing an employee’s use of a sign language
interpreter or assistive technology as reasonable accommodations.

Nor should an employer assume that an unsatisfactory rating
means that the reasonable accommodation is not working. The employer
can proceed with the unsatisfactory rating but may also wish to
determine the cause of the performance problem to help evaluate the
effectiveness of the reasonable accommodation. If the reasonable
accommodation is not assisting the employee in improving his performance
as intended, the employer and employee may need to explore whether any
changes would make the accommodation effective, whether an additional
accommodation is needed, or whether the original accommodation should be
withdrawn and another should be substituted.36

8. May an employer discipline an employee with a disability for violating a conduct standard?

Yes. If an employee’s disability does not cause the
misconduct, an employer may hold the individual to the same conduct
standards that it applies to all other employees. In most instances, an
employee’s disability will not be relevant to any conduct violations.

Example 12: A blind employee has frequent
disputes with her supervisor. She makes personal phone calls on company
time, despite being told to stop. She routinely walks away from the
job to smoke a cigarette despite warnings that she can do so only on
breaks. She taunts the supervisor and disobeys his instructions
regarding safe use of equipment. The employee’s actions are unrelated
to her disability and the employer may discipline her for
insubordination.37

Example 13: Coworkers frequently taunt an
employee with cerebral palsy because of his speech impediment, but the
supervisor neither knows nor has reason to know about the taunting.
Instead of reporting the coworkers’ behavior to his supervisor or human
resources department, the employee goes into the offices of his
coworkers and destroys some of their property. The employer may
discipline the employee for his inappropriate response. (Because
management is now aware of the coworkers’ actions, it must promptly
investigate to determine whether they constitute harassment. If so, the
employer must take appropriate action to prevent future harassment.)

9. If an employee’s disability causes violation of a conduct rule, may the employer discipline the individual?

Yes, if the conduct rule is job-related and consistent with
business necessity and other employees are held to the same standard.38
The ADA does not protect employees from the consequences of violating
conduct requirements even where the conduct is caused by the disability.39

The ADA generally gives employers wide latitude to develop and
enforce conduct rules. The only requirement imposed by the ADA is that
a conduct rule be job-related and consistent with business necessity
when it is applied to an employee whose disability caused her to violate
the rule.40 Certain conduct standards
that exist in all workplaces and cover all types of jobs will always
meet this standard, such as prohibitions on violence, threats of
violence, stealing, or destruction of property.41
Similarly, employers may prohibit insubordination towards supervisors
and managers and also require that employees show respect for, and deal
appropriately with, clients and customers.42 Employers also may:

prohibit inappropriate behavior between coworkers (e.g., employees may not yell, curse, shove, or make obscene gestures at each other at work);43

prohibit employees from sending inappropriate or offensive e-mails (e.g.,
those containing profanity or messages that harass or threaten
coworkers); using the Internet to access inappropriate websites (e.g.,
pornographic sites, sites exhibiting crude messages, etc.); and making
excessive use of the employer’s computers and other equipment for
purposes unrelated to work;

prohibit drinking or illegal use of drugs in the workplace. [See Question 26.]

Whether an employer’s application of a conduct rule to an
employee with a disability is job-related and consistent with business
necessity may rest on several factors, including the manifestation or
symptom of a disability affecting an employee’s conduct, the frequency
of occurrences, the nature of the job, the specific conduct at issue,
and the working environment. These factors may be especially critical
when the violation concerns “disruptive” behavior which, unlike
prohibitions on stealing or violence, is more ambiguous concerning
exactly what type of conduct is viewed as unacceptable.45 The following examples illustrate how different results may follow from application of these factors in specific contexts.

Example 14: Steve, a new bank teller, barks,
shouts, utters nonsensical phrases, and makes other noises that are so
loud and frequent that they distract other tellers and cause them to
make errors in their work. Customers also hear Steve’s vocal tics, and
several of them speak to Donna, the bank manager. Donna discusses the
issue with Steve and he explains that he has Tourette Syndrome, a
neurological disorder characterized by involuntary, rapid, sudden
movements or vocalizations that occur repeatedly. Steve explains that
while he could control the tics sufficiently during the job interview,
he cannot control them throughout the work day; nor can he modulate his
voice to speak more softly when these tics occur. Donna lets Steve
continue working for another two weeks, but she receives more complaints
from customers and other tellers who, working in close proximity to
Steve, continue to have difficulty processing transactions. Although
Steve is able to perform his basic bank teller accounting duties, Donna
terminates Steve because his behavior is not compatible with performing
the essential function of serving customers and his vocal tics are
unduly disruptive to coworkers. Steve’s termination is permissible
because it is job-related and consistent with business necessity to
require that bank tellers be able to (1) conduct themselves in an
appropriate manner when serving customers46
and (2) refrain from interfering with the ability of coworkers to
perform their jobs. Further, because Steve never performed the
essential functions of his job satisfactorily, the bank did not have to
consider reassigning him as a reasonable accommodation.47

Example 15: Steve works as a bank teller but
his Tourette Syndrome now causes only infrequent throat clearing and eye
blinks. These behaviors are not disruptive to other tellers or
incompatible with serving customers. Firing Steve for these behaviors
would violate the ADA because it would not be job-related and consistent
with business necessity to require that Steve refrain from minor tics
which do not interfere with the ability of his coworkers to do their
jobs or with the delivery of appropriate customer service.

Example 16: Assume that Steve has all the
severe tics mentioned in Example 14, but he now works in a noisy
environment, does not come into contact with customers, and does not
work close to coworkers. The environment is so noisy that Steve’s
vocalizations do not distract other workers. Steve’s condition would
not necessarily make him unqualified for a job in this environment.

Example 17: A telephone company employee’s
job requires her to spend 90% of her time on the telephone with
coworkers in remote locations, discussing installation of equipment.
The company’s code of conduct requires workers to be respectful towards
coworkers. Due to her psychiatric disability, the employee walks out of
meetings, hangs up on coworkers on several occasions, and uses
derogatory nicknames for coworkers when talking with other employees.48
The employer first warns the employee to stop her unacceptable conduct,
and when she persists, issues a reprimand. After receiving the
reprimand, the employee requests a reasonable accommodation. The
employee’s antagonistic behavior violated a conduct rule that is
job-related and consistent with business necessity and therefore the
employer’s actions are consistent with the ADA. However, having
received a request for reasonable accommodation, the employer should
discuss with the employee whether an accommodation would assist her in
complying with the code of conduct in the future.

Example 18: Darren is a long-time employee
who performs his job well. Over the past few months, he is frequently
observed talking to himself, though he does not speak loudly, make
threats, or use inappropriate language. However, some coworkers who are
uncomfortable around him complain to the division manager about
Darren’s behavior. Darren’s job does not involve customer contact or
working in close proximity to coworkers, and his conversations do not
affect his job performance. The manager tells Darren to stop talking to
himself but Darren explains that he does so as a result of his
psychiatric disability. He does not mean to upset anyone, but he cannot
control this behavior. Medical documentation supports Darren’s
explanation. The manager does not believe that Darren poses a threat to
anyone, but he transfers Darren to the night shift where he will work
in relative isolation and have less opportunity for advancement, saying
that his behavior is disruptive.

Although the coworkers may feel some discomfort, under these
circumstances it is not job-related and consistent with business
necessity to discipline Darren for disruptive behavior. It also would
violate the ADA to transfer Darren to the night shift based on this
conduct. While it is possible that the symptoms or manifestations of an
employee’s disability could, in some instances, disrupt the ability of
others to do their jobs that is not the case here. Employees have not
complained that Darren’s voice is too loud, that the content of what he
says is inappropriate, or that he is preventing them from doing their
jobs. They simply do not like being around someone who talks to
himself.

Questions 10 - 15 assume that the conduct rule at issue is job-related and consistent with business necessity.

10. What should an employer do if an employee mentions a
disability and/or the need for an accommodation for the first time in
response to counseling or discipline for unacceptable conduct?

If an employee states that her disability is the cause of the
conduct problem or requests accommodation, the employer may still
discipline the employee for the misconduct. If the appropriate
disciplinary action is termination, the ADA would not require further
discussion about the employee’s disability or request for reasonable
accommodation.49

If the discipline is something less than termination, the
employer may ask about the disability’s relevance to the misconduct, or
if the employee thinks there is an accommodation that could help her
avoid future misconduct.50 If an
accommodation is requested, the employer should begin an “interactive
process” to determine whether one is needed to correct a conduct
problem, and, if so, what accommodation would be effective.51
The employer may seek appropriate medical documentation to learn if
the condition meets the ADA’s definition of “disability,” whether and to
what extent the disability is affecting the employee’s conduct, and
what accommodations may address the problem.

Employers cannot refuse to discuss the request or fail to
provide reasonable accommodation as a punishment for the conduct
problem. If a reasonable accommodation is needed to assist an employee
with a disability in controlling his behavior and thereby preventing
another conduct violation, and the employer refuses to provide one that
would not cause undue hardship, then the employer has violated the ADA.

Example 19: Tom, a program director, has
successfully controlled most symptoms of his bipolar disorder for a long
period, but lately he has had a recurrence of certain symptoms. In the
past couple of weeks, he has sometimes talked uncontrollably and his
judgment has seemed erratic, leading him to propose projects and
deadlines that are unrealistic. At a staff meeting, he becomes angry
and disparaging towards a colleague who disagrees with him. Tom’s
supervisor tells him after the meeting that his behavior was
inappropriate. Tom agrees and reveals for the first time that he has
bipolar disorder. He explains that he believes he is experiencing a
recurrence of symptoms and says that he will contact his doctor
immediately to discuss medical options. The next day Tom provides
documentation from his doctor explaining the need to put him on
different medication, and stating that it should take no more than six
to eight weeks for the medication to eliminate the symptoms. The doctor
believes Tom can still continue working, but that it would be helpful
for the next couple of months if Tom had more discussions with his
supervisor about projects and deadlines so that he could receive
feedback to ensure that his goals are realistic. Tom also requests that
his supervisor provide clear instructions in writing about work
assignments as well as intermediate timetables to help him keep on
track. The supervisor responds that Tom must treat his colleagues with
respect and agrees to provide for up to two months all of the reasonable
accommodations Tom has requested because they would assist him to
continue performing his job without causing an undue hardship.

Practical Guidance: Ideally, employees
will request reasonable accommodation before conduct problems arise, or
at least before they become too serious.52
Although the ADA does not require employees to ask for an
accommodation at a specific time, the timing of a request for reasonable
accommodation is important because an employer does not have to rescind
discipline (including termination) warranted by misconduct. Employees
should not assume that an employer knows that an accommodation is needed
to address a conduct issue merely because the employer knows about the
employee’s disability. Nor does an employer’s knowledge of an employee’s
disability require the employer to ask if the misbehavior is
disability-related.

Example 20: An employee informs her
supervisor that she has been diagnosed with bipolar disorder. A few
months later, the supervisor asks to meet with the employee concerning
her work on a recent assignment. At the meeting, the supervisor
explains that the employee’s work has been generally good, but he
provides some constructive criticism. The employee becomes angry, yells
at the supervisor, and curses him when the supervisor tells her she
cannot leave the meeting until he has finished discussing her work. The
company terminates the employee, the same punishment given to any
employee who is insubordinate. The employee protests her termination,
telling the supervisor that her outburst was a result of her bipolar
disorder which makes it hard for her to control her temper when she is
feeling extreme stress. She says she was trying to get away from the
supervisor when she felt she was losing control, but he ordered her not
to leave the room. The employee apologizes and requests that the
termination be rescinded and that in the future she be allowed to leave
the premises if she feels that the stress may cause her to engage in
inappropriate behavior. The employer may leave the termination in place
without violating the ADA because the employee’s request for reasonable
accommodation came after her insubordinate conduct.

11. May an employer only discipline an employee whose
misconduct results from a disability for conduct prohibited in an
employee handbook or similar document?

No. An employer may enforce conduct rules that are not found
in workplace policies, employee handbooks, or similar documents so long
as they are: (1) job-related and consistent with business necessity, and
(2) applied consistently to all employees and not just to a person with
a disability. Many times, the proscribed conduct is well understood by
both the employer and employees as being unacceptable without being
formally written, such as a prohibition on insubordination.

Example 21: Mary’s disability has caused her
to yell at and insult her supervisor and coworkers. There is no formal
policy addressing such conduct, nor need there be. Prohibiting an
employee from acting belligerently towards a supervisor or coworkers is
job-related and consistent with business necessity, and thus Mary’s
supervisor may discipline her as long as the same discipline would be
imposed on a non-disabled employee for the same conduct.

Sometimes, an employee’s conduct may not be directly addressed by a
conduct rule but nonetheless clearly violates a behavior norm that is
job-related and consistent with business necessity.

Example 22: Jane has Down syndrome and is
employed as a bagger at a grocery store. Jane is very friendly and
likes to hug customers as they leave. Although she means well,
management finds this behavior is unacceptable. Jane’s manager talks to
her and also contacts the job coach who helped Jane learn to do her
job. The manager explains the unacceptable behavior and as a reasonable
accommodation has the job coach return to work with Jane for a few days
until she learns that she cannot hug the customers.

It is job-related and consistent with business necessity to require that
Jane refrain from hugging customers. Although the grocery store does
not have a rule specifically prohibiting physical contact with
customers, refraining from such conduct is an inherent part of treating
customers with appropriate respect and courtesy.53

Example 23: Jenny has cerebral palsy which
causes her hands to shake. The supervisor observes Jenny spilling some
of her drink on the counter in the office kitchen, and notices that she
fails to clean it up. The supervisor has observed non-disabled
employees leaving a mess, but has never disciplined them for this
behavior. Nevertheless, the supervisor tells Jenny she can no longer
use the kitchen because of her failure to clean up the spill. Although
Jenny’s disability did not prevent her from cleaning up, singling Jenny
out for punishment could be a violation of the ADA.

On the other hand, the supervisor could have prohibited Jenny from using
the kitchen if he had previously announced that employees would be
required to clean up after themselves or risk being denied access to the
kitchen.

Practical Guidance: Whether rules are
written or not, employers should be careful that all conduct rules are
applied consistently and should not single out an employee with a
disability for harsher treatment. In addition, because ad hoc rules are
just that, ad hoc, an employer may have more difficulty demonstrating
that they are job-related and consistent with business necessity.

12. May an employer require an employee to receive or change treatment for a disability to comply with a conduct standard?

No. Decisions about medication and treatment often involve many considerations beyond the employer’s expertise.54

Practical Guidance: Regardless of whether
employers believe they are trying to help employees who have medical
conditions, employers should focus instead on addressing unacceptable
workplace conduct. Employer comments about the disability and its
treatment could lead to potential ADA claims (e.g., the employer “regarded” the employee as having a disability or the employer engaged in disparate treatment).

Although employers should not intervene in medical decisions,
they should be prepared to discuss providing a reasonable accommodation
that will enable an employee to correct a conduct problem. The ADA
requires an employer to provide reasonable accommodation regardless of
what effect medication or other medical treatment may have on an
employee’s ability to perform the job. However, if an employee does not
take medication or receive treatment and, as a result, cannot perform
the essential functions of the position or poses a direct threat, even
with a reasonable accommodation, she is unqualified.55
Similarly, if an employee does not take medication or receive treatment
and, as a result, cannot meet a conduct standard, even with a
reasonable accommodation, the employer may take disciplinary action.

Example 24: An employee with a psychiatric
disability takes medication, but one side effect is that the employee
sometimes becomes restless. The employee‘s restlessness leads him to
become easily distracted by nearby colleagues which, in turn, causes him
to interrupt his coworkers. The supervisor counsels the employee about
his disruptiveness and lack of focus. The employee tells the
supervisor about his disability and the side effect of the medication he
takes, and asks to be moved to a quieter work space to lessen the
distractions. He also says that it would be helpful if his supervisor
gave him more structured assignments with more deadlines to focus his
attention.

The supervisor consults with the HR director, telling her that he thinks
there is a special medication that could control the restlessness. The
HR director appropriately rejects the supervisor’s suggestion and
recommends that the supervisor begin providing more structured
assignments while she requests medical documentation from the employee
confirming the side effect. Once confirmed, the HR director finds a
vacant cubicle in a quiet part of the office which, together with the
more structured assignments, resolves the issue.

13. Should an employer mention an employee’s disability
during a discussion about a performance or conduct problem if the
employee does not do so?

Generally, it is inappropriate for the employer to focus
discussion about a performance or conduct problem on an employee’s
disability. The point of the employer’s comments should be a clear
explanation of the employee’s performance deficiencies or misconduct and
what he expects the employee to do to improve. Moreover, emphasizing
the disability risks distracting from the focus on performance or
conduct, and in some cases could result in a claim under the ADA that
the employer “regarded” (or treated) the individual as having a
disability.

Practical Guidance: It is generally
preferable that the employee initiate any discussion on the role of the
disability. Ideally, employers should discuss problems before they
become too serious in order to give the employee an opportunity as soon
as possible to address the employer’s concerns.

Practical Guidance: An employee who is on notice about a
performance or conduct problem and who believes the disability is
contributing to the problem should evaluate whether a reasonable
accommodation would be helpful. An employee should not assume that an
employer knows about a disability based on certain behaviors or
symptoms.56 Nor should an employee expect
an employer to raise the issue of the possible need for reasonable
accommodation, even when a disability is known or obvious.57

14. When discussing performance or conduct problems with an
employee who has a known disability, may an employer ask if the
employee needs a reasonable accommodation?

Yes. An employer may ask an employee with a known disability
who is having performance or conduct problems if he needs a reasonable
accommodation.58 Alternatively, an
employer may prefer to ask if some step(s) can be taken to enable the
employee to improve his performance or conduct without mentioning
accommodation or the employee’s disability.

Practical Guidance: In order to have a
productive discussion about whether reasonable accommodation might be
needed, it may be helpful if the employer first is clear with the
employee about the performance or conduct issue and what the employee
needs to do to improve.

Example 25: A supervisor knows that an
employee has failing eyesight due to macular degeneration. The employee
does not want to acknowledge his vision problem, even though the
supervisor points out mounting errors that seem connected to the
deteriorating vision. The supervisor enjoys working with the employee
and knows he is capable of good work, but is uncertain how to handle
this situation.

The supervisor may ask the employee if there is anything she can do to
assist him. Because the supervisor knows about the deteriorating
eyesight, she may (but is not required to) ask if the employee needs a
reasonable accommodation, such as magnifying equipment, software that
reads material from a computer screen, or large print. However, the
supervisor cannot force the employee to accept an accommodation. If the
employee refuses to discuss a reasonable accommodation, the supervisor
may continue to address the performance problem in the same manner that
she would with any other employee.

15. Does an employer have to provide a reasonable
accommodation to an employee with a disability who needs one to discuss a
performance or conduct problem?

Yes. An employer might have to provide a reasonable
accommodation to enable an employee with a disability to understand the
exact nature of any performance or conduct problem and to have a
meaningful discussion with the employer about it.59

Example 26: A supervisor knows that a deaf
employee who has previously requested reasonable accommodation cannot
lip read. Nonetheless, the supervisor approaches the employee and begins
verbally discussing mistakes she has been making. The supervisor has
violated the ADA by not providing an effective reasonable accommodation
to have a meaningful discussion with the employee.60 Possible accommodations include a written exchange (e.g.,
e-mails) if the mistakes are simple ones to address and the discussion
is likely to be short and straightforward, or a sign language
interpreter if the discussion is likely to be lengthy and complex.

Similarly, an employer may need to provide reasonable
accommodation to enable an employee with a disability to participate in a
performance review. Even if there are no performance problems, the
employee is entitled to the same opportunity as a non-disabled employee
to discuss his performance.

Example 27: A blind employee asks for her
performance review in Braille. Her supervisor would prefer to read the
review aloud instead. All other employees get a written copy of their
review. The supervisor’s suggestion is not an effective accommodation
because it would not permit the blind employee to read the performance
review when she wants like other employees. The employer must provide a
reasonable accommodation (absent undue hardship) that allows the
employee to read the review, and this may include a Braille copy or a
version in another format that the employee is capable of reading on her
own (e.g., an electronic version).

An employer also may need to provide a reasonable
accommodation to enable an employee with a disability to participate in
an investigation into misconduct, whether as the subject of the
investigation or a witness, to ensure the employee understands what is
happening and can provide meaningful input.

Example 28: A deaf employee at a federal
agency is involved in an altercation with a coworker. Because of the
uncertainty about each employee’s role in the altercation, agency
officials initiate an investigation but deny the employee’s request for a
sign language interpreter when they come to interview him and instead
rely on an exchange of notes. Although there were some answers the
employee gave that the officials would have followed up on if the
communication was oral, they did not do so because of the difficulty of
exchanging handwritten notes. Thus, the accommodation is not effective
because it hampers the ability of the parties to communicate fully with
each other. Effective communication is especially critical given the
seriousness of the situation and the potentially high stakes
(disciplinary action may be imposed on this employee or the coworker).
The agency should have postponed the interview until it could get an
interpreter.61

Some employers want to ask for medical information in response to an
employee’s performance or conduct problem because they believe it might
help them to understand why the problem exists and what might be an
appropriate response.

16. May an employer require an employee who is having
performance or conduct problems to provide medical information or
undergo a medical examination?

Sometimes. The ADA permits an employer to request medical
information or order a medical examination when it is job-related and
consistent with business necessity.62
Generally, this means that the employer has a reasonable belief, based
on objective evidence, that an employee is unable to perform an
essential function or will pose a “direct threat” because of a medical
condition.63 The scope and manner of any
inquiries or medical examinations must be limited to information
necessary to determine whether the employee is able to perform the
essential functions of the job or can work without posing a direct
threat.64

An employer must have objective evidence suggesting that a
medical reason is a likely cause of the problem to justify seeking
medical information or ordering a medical examination. In limited
circumstances, the nature of an employee’s performance problems or
unacceptable conduct may provide objective evidence that leads an
employer to a reasonable belief that a medical condition may be the
cause.65

Example 29: An employee with no history of
performance or conduct problems suddenly develops both. Over the course
of several weeks, her work becomes sloppy and she repeatedly misses
deadlines. She becomes withdrawn and surly, and in meetings she is
distracted and becomes belligerent when asked a question. When her
supervisor starts asking her about her behavior, she responds with
answers that make no sense.

The sudden, marked change in performance and conduct, the nonsensical
answers, and the belligerent behavior all reasonably suggest that a
medical condition may be the cause of the employee’s performance and
conduct problems. This employer may ask the employee medical questions (e.g.,
are you ill, have you seen a doctor, is there a medical reason for the
sudden, serious change in your behavior). The employer also may, as
appropriate, require the employee

(1) to go to an Employee Assistance Program (EAP);

(2) to produce medical documentation that she is fit to continue
working (including the ability to meet minimum performance requirements
and exhibit appropriate behavior); and/or

(3) to undergo an appropriate medical examination related to the performance and conduct issues.

The employer also may take a number of actions while it awaits
medical documentation on whether she is able to continue performing her
job, including placing the employee on leave.

Not all performance problems or misconduct will justify an
employer’s request for medical information or a medical examination. An
employer cannot require a medical examination solely because an
employee’s behavior is annoying, inefficient, or otherwise unacceptable.
66 In fact, there may be other reasons that an employee
experiences performance or conduct problems that are unrelated to any
medical condition, such as insufficient knowledge, conflict with a
supervisor or coworker, lack of motivation or skills, a poor attitude,
or personal problems (such as a divorce or other family problems).

Example 30: A supervisor finds an employee
asleep at his desk. She wants to send the employee for a medical
examination. However, there could be many reasons the employee is
asleep. The employee may work a second job, stay up late at night, or
have family problems that are causing him to lose sleep. Because there
is insufficient evidence to focus on a medical cause for this behavior,
requiring the employee to produce medical documentation or to undergo a
medical examination would not be justified. However, if the employee
when asked to explain his behavior reveals that the cause is a medical
problem (e.g., sleep apnea), then the employer would have
sufficient objective evidence to justify requesting additional medical
information or a medical examination.

Example 31: An employee with Parkinson’s
disease has constant run-ins with his supervisor, including ignoring
instructions, taking extra breaks, and using disrespectful language.
Although the employer may discipline the employee for these acts of
insubordination, no evidence suggests that this behavior stems from his
Parkinson’s disease. Therefore, the employer may not ask the employee
for medical information or order him to have a medical examination.

17. Must an employer who has a sufficient basis for
requesting medical information or requiring a medical examination take
such steps instead of imposing discipline for poor performance or
conduct?

No. The ADA permits but does not require an employer to seek
medical information. An employer may choose to focus solely on the
performance or conduct problems and take appropriate steps to address
them.67

Practical Guidance: Even when the ADA
permits an employer to seek medical information or require a medical
examination, it still may be difficult to determine if that is an
appropriate course of action. It is advisable for employers to
determine whether simply addressing the problem without such information
will be effective.

Employers generally have attendance requirements. Many
employers recognize that employees need time off and therefore provide
paid leave in the form of vacation or annual leave, personal days, and
sick days. Some employers also offer opportunities to use advance or
unpaid leave, as well as leave donated by coworkers. Certain laws may
require employers to extend leave, such as the ADA (as a reasonable
accommodation) and the Family and Medical Leave Act.68

18. Must employees with disabilities be granted the same
access to an employer’s existing leave program as all other employees?

Yes. Employees with disabilities are entitled to whatever
forms of leave the employer generally provides to its employees. This
means that when an employee with a disability seeks leave under an
employer’s regular leave policies, she must meet any eligibility
requirements for the leave that are imposed on all employees (e.g.,
only employees who have completed a probation program can be granted
advance leave). Similarly, employers must provide employees with
disabilities with equal access to programs granting flexible work
schedules and modified schedules.69

Example 32: An employee requests a nine-month
leave of absence because of a disability. The employer has a policy of
granting unpaid medical leave for one year but it refuses this
employee’s request and terminates her instead. If the employer’s policy
is to grant employees up to one year of medical leave, with no other
conditions, denying this benefit because an employee has a disability
would violate the ADA.70

If an employee with a disability needs leave or a modified
schedule beyond that provided for under an employer’s benefits program,
the employer may have to grant the request as a reasonable accommodation
if there is no undue hardship.

Yes. If requested, employers may have to modify attendance policies as a reasonable accommodation, absent undue hardship.71
Modifications may include allowing an employee to use accrued paid
leave or unpaid leave, adjusting arrival or departure times (e.g.,
allowing an employee to work from 10 a.m. to 6 p.m. rather than the
usual 9 a.m. to 5 p.m. schedule required of all other employees), and
providing periodic breaks.72

20. Does the ADA require that employers exempt an employee with a disability from time and attendance requirements?

Although the ADA may require an employer to modify its time
and attendance requirements as a reasonable accommodation (absent undue
hardship), employers need not completely exempt an employee from time
and attendance requirements, grant open-ended schedules (e.g.,
the ability to arrive or leave whenever the employee’s disability
necessitates), or accept irregular, unreliable attendance. Employers
generally do not have to accommodate repeated instances of tardiness or
absenteeism that occur with some frequency, over an extended period of
time and often without advance notice.
73 The chronic, frequent, and
unpredictable nature of such absences may put a strain on the employer’s
operations for a variety of reasons, such as the following:

an inability to ensure a sufficient number of employees to accomplish the work required;

a failure to meet work goals or to serve customers/clients adequately;

a need to shift work to other employees, thus preventing them from
doing their own work or imposing significant additional burdens on them;74

incurring significant additional costs when other employees work overtime or when temporary workers must be hired.

Under these or similar circumstances, an employee who is chronically,
frequently, and unpredictably absent may not be able to perform one or
more essential functions of the job, or the employer may be able to
demonstrate that any accommodation would impose an undue hardship, thus
rendering the employee unqualified.75

Example 33: An employee with asthma who is
ineligible for FMLA leave works on an assembly line shift that begins at
7 a.m. Recently, his illness has worsened and his doctor has been
unable to control the employee’s increasing breathing difficulties. As a
result of these difficulties, the employee has taken 12 days of leave
during the past two months, usually in one- or two-day increments. The
severe symptoms generally occur at night, thus requiring the employee to
call in sick early the next morning. The lack of notice puts a strain
on the employer because the assembly line cannot function well without
all line employees present and there is no time to plan for a
replacement. The employer seeks medical documentation from the
employee’s doctor about his absences and the doctor’s assessment of
whether the employee will continue to have a frequent need for
intermittent leave. The doctor responds that various treatments have
not controlled the asthmatic symptoms, there is no way to predict when
the more serious symptoms will suddenly flare up, and he does not expect
any change in this situation for the foreseeable future. Given the
employee’s job and the consequences of being unable to plan for his
absences, the employer determines that he cannot keep the employee on
this shift. Assuming no position is available for reassignment, the
employer does not have to retain the employee.

Practical Guidance: It is best if an
employee requests accommodation once he is aware that he will be
violating an attendance policy or requiring intermittent leave due to a
disability. Otherwise, an employer is entitled to continue holding the
employee accountable for such absences without any obligation to
consider if there is a reasonable accommodation that might address the
problem. Moreover, prompt requests for accommodation may enable an
employer to better plan for schedule modifications or absences, thus
permitting an employee to get the accommodation.

Example 34: An office worker with epilepsy
who is ineligible for FMLA leave has two seizures at work in a
three-month period. In both instances, the after-effects of the seizure
required the individual to leave work for the remainder of the day,
although she was able to return to work on the following day. To
determine whether the seizures will continue and their impact on
attendance and job performance, the employer requests documentation from
the employee’s doctor. The doctor responds that the employee may
experience similar seizures once every two to four months, that there is
no way to predict exactly when a seizure will occur, and that the
employee will need to take the rest of the day off when one does occur.
The doctor sees no reason why the employee would need more than a day’s
leave for each seizure. Although the employee’s need for leave is
unpredictable, the employee will require only one day of leave every few
months (or approximately six time a year). The employer determines
that it is appropriate to grant the employee the reasonable
accommodation of intermittent leave, as needed, because there will be no
undue hardship and this accommodation will permit the employee to
recover from a seizure.

Example 35: An employee works as an event
coordinator. She has exhausted her FMLA leave due to a disability and
now requests additional intermittent leave as a reasonable
accommodation. The employee can never predict when the leave will be
needed or exactly how much leave she will need on each occasion, but she
always needs from one to three days of leave at a time. The employer
initially agrees to her request and the employee takes 14 days of leave
over the next two months. Documentation from the employee’s doctor
shows that the employee will continue to need similar amounts of
intermittent leave for at least the next six months. Event planning
requires staff to meet strict deadlines and the employee’s sudden
absences create significant problems. Given the employee’s prognosis of
requiring unpredictable intermittent leave, the employer cannot plan
work around these absences. The employer has already had to move
coworkers around to cover the employee’s absences and delay certain
work. The on-going, frequent, and unpredictable nature of the absences
makes additional leave an undue hardship, and thus the employer is not
required to provide it as a reasonable accommodation. If the employer
cannot reassign the employee to a vacant position that can accommodate
her need for intermittent leave, it is not required to retain her.

Example 36: An employee with multiple
sclerosis works as a bookkeeper for a small medical practice that is not
covered under the FMLA but is covered under the ADA. He requests
intermittent leave as a reasonable accommodation. The employee has
already taken five days of sick leave for the disability when he makes
the request (a two-day and a three-day leave of absence). Documentation
from the employee’s doctor shows that the employee will continue to
need intermittent leave for at least several months. The doctor cannot
predict when or how much leave will be needed, but based on the
employee’s treatment and the current situation, the doctor believes that
each leave of absence would be from one to three days. The employer
determines that no undue hardship exists at this time and grants the
employee intermittent leave for the disability consistent with the
doctor’s letter. The employer explains that it will reassess the
accommodation in six months or sooner if the employee’s use of leave
begins to have a negative impact on its operations. During the next six
months, the employee takes 12 days of medical leave. While the
employee’s unpredictable absences cause some problems, the employer has
managed to adjust to the situation without burdening other employees or
falling behind in the workload, the employee has made up work where he
could, and the employee has always notified his supervisor immediately
when he realizes he needs to take leave. Because there is no undue
hardship at this time, the employer agrees to continue the reasonable
accommodation of intermittent leave under the same conditions as before.

21. Do employers have to grant indefinite leave as a reasonable accommodation to employees with disabilities?

No. Although employers may have to grant extended medical
leave as a reasonable accommodation, they have no obligation to provide
leave of indefinite duration. Granting indefinite leave, like frequent
and unpredictable requests for leave, can impose an undue hardship on an
employer’s operations.76 Indefinite leave is different from leave requests that give an approximate date of return (e.g., a doctor’s note says that the employee is expected to return around the beginning of March) or give a time period for return (e.g.,
a doctor’s note says that the employee will return some time between
March 1 and April 1). If the approximate date of return or the
estimated time period turns out to be incorrect, the employer may seek
medical documentation to determine whether it can continue providing
leave without undue hardship or whether the request for leave has become
one for leave of indefinite duration.

Example 37: An employer’s policy allows
employees one year of medical leave but then requires either that they
return (with or without reasonable accommodation, if appropriate) or be
terminated. An employee with a disability who has been on medical leave
for almost one year informs her employer that she will need a total of
13 months of leave for treatment of her disability and then she will be
able to return to work. She provides detailed medical documentation in
support of her request. This request is not for indefinite leave
because the employee provides a specific date on which she can return;
the employer must provide the additional month of leave as a reasonable
accommodation unless it would cause an undue hardship. The employer may
consider the impact on its operations caused by the initial 12-month
absence, along with other undue hardship factors. 77
The mere fact that granting the requested accommodation requires the
employer to modify its leave policy for this employee does not
constitute undue hardship.78

Example 38: The employer has the same leave
policy described in Example 37. An employee with a disability has been
on medical leave for one year when he informs his employer that he will
never be able to return to his old job due to his disability, and he is
unable to provide information on whether and when he could return to
another job that he could perform. The employer may terminate this
worker because the ADA does not require the employer to provide
indefinite leave.79

Example 39: An employer grants 12 weeks of
medical leave at the request of an employee with a disability. At the
end of this period, the employee submits a note from his doctor
requesting six additional weeks, which the employer grants. At the
conclusion of this period, the employee submits a new note seeking
another six weeks of leave, which would bring the employee’s total leave
to 24 weeks. The employer is concerned about the requests for
extensions and whether they signal a pattern. Although the employer has
been able to cope with the extended absence to date, it foresees a more
serious impact on its operations if the employee requires more than a
few additional weeks of leave. The employer requests information from
the employee’s doctor about the two extensions, including the reason why
the doctor’s earlier predictions on return turned out to be wrong, a
clear description of the employee’s current condition, and the basis for
the doctor’s conclusion that only another six weeks of leave are
required. The doctor explains that there have been complications and
that the employee is not responding to treatment as expected. The
doctor states that the current request for an additional six weeks may
not be sufficient and that more leave, maybe up to several months, may
be needed. The doctor states that the employee’s current condition does
not permit a clear answer as to when he will be able to return to work.
This information supports a conclusion that the employee’s request has
become one for indefinite leave. This poses an undue hardship and
therefore the employer may deny the request.

22. Does an employer have to grant a reasonable
accommodation to an employee with a disability who waited until after
attendance problems developed to request it?

An employer may impose disciplinary action, consistent with
its policies as applied to other employees, for attendance problems that
occurred prior to a request for reasonable accommodation. However, if
the employee’s infraction does not merit termination but some lesser
disciplinary action (e.g., a warning), and the employee then
requests reasonable accommodation, the employer must consider the
request and determine if it can provide a reasonable accommodation
without causing undue hardship.

Example 40: An employee with diabetes is
given a written warning for excessive absenteeism. After receiving the
warning, the employee notifies his employer that his
absences were related to his diabetes which is not well controlled. The
employee asks
that the employer withdraw the written warning and provide him with
leave when
needed due to complications from his diabetes. The employee’s doctor
has changed his
treatment and states that he expects the employee’s diabetes to be well
controlled within
the next one to two months. The doctor also states that there might
still be a need for
leave during this transitional period, but expects the employee would be
out of work no
more than three or four days.

The employer does not have to withdraw the written warning, but it must
grant the requested accommodation unless it would pose an undue
hardship.

Example 41: A bank manager’s starting time is
8 a.m., but due to the serious side effects of medication she takes for
her disability she cannot get to work until 9 a.m. The manager’s late
arrival results in a verbal warning, prompting her to request that she
be allowed to arrive at 9 a.m. because of the side effects of medication
she takes for her disability. The manager’s modified arrival time
would not affect customer service or the ability of other employees to
do their jobs, and she has no duties that require her to be at the bank
before 9 a.m. The bank denies this request for reasonable
accommodation, saying that as a manager she must set a good example for
other employees about the importance of punctuality. Because the
manager’s later arrival time would not affect the manager’s performance
or the operation of the bank, denial of this request for reasonable
accommodation is a violation of the ADA.80

Employers may require employees to wear certain articles of clothing to protect themselves, coworkers, or the public (e.g.,
construction workers are required to wear certain head gear to prevent
injury; health care workers wear gloves to prevent transmission of
disease from or to patients). Sometimes employers impose dress codes to
make employees easily identifiable to customers and clients, or to
promote a certain image (e.g., a movie theater requires its staff
to wear a uniform; a store requires all sales associates to dress in
black). A dress code also may prohibit employees from wearing certain
items either as a form of protection or to promote a certain image (e.g., prohibitions on wearing jewelry or baseball caps, or requirements that workers wear business attire).81

23. May an employer require that an employee with a disability follow the dress code imposed on all workers in the same job?

An employer may require an employee with a disability to
observe a dress code imposed on other employees in the same job. For
example, a professional office may require its employees to wear
appropriate business attire because the nature of the jobs could bring
them into contact with clients, customers, and the public.

Where an employee’s disability makes it difficult for him to
comply fully with a dress code, an employer may be able to provide a
reasonable accommodation.

Example 42: An employer requires all of its
employees to wear a uniform provided by the employer. An employee with
quadriplegia cannot wear this uniform because he cannot use zippers and
buttons and because the shape of the uniform causes discomfort when he
sits in a wheelchair. The employee tells the employer about these
difficulties and informs the employer about manufacturers that
specialize in making clothes for persons with disabilities. The
individual shows the employer a catalogue and together they are able to
choose items that approximate the uniform, thus meeting the needs of
both the employer and the individual. As a reasonable accommodation,
the employer provides the employee with the specified uniform.

Example 43: An employee is undergoing
radiation therapy for cancer which has caused sores to develop. The
employee cannot wear her usual uniform because it is causing severe
irritation as it constantly rubs against the sores. The employee seeks
an exemption from the uniform requirement until the radiation treatment
ends and the sores have disappeared or are less irritating. The
employer agrees, and working with the employee, decides on acceptable
clothes that the employee can wear as a reasonable accommodation that
meet the medical needs of the employee, easily identify the individual
as an employee, and enable the individual to present a professional
appearance.

Example 44: A professional office requires
that its employees wear business dress at all times. Due to diabetes,
Carlos has developed foot ulcers making it very painful to wear dress
shoes. Also, dress shoes make the ulcers worse. Carlos asks to wear
sneakers instead. The supervisor is concerned about Carlos’s appearance
when meeting with clients. These meetings usually occur once a week
and last about an hour or two. Carlos and his doctor agree that Carlos
can probably manage to wear dress shoes for this limited time. Carlos
also tells his supervisor that he will purchase black leather sneakers
to wear at all other times. The supervisor permits Carlos to wear black
sneakers except when he meets with clients.

If the employee cannot meet the dress code because of a
disability, the employer may still require compliance if the dress code
is job-related and consistent with business necessity. An employer also
may require that an employee with a disability meet dress standards
required by federal law. If an individual with a disability cannot
comply with a dress code that meets the “business necessity” standard or
is mandated by federal law, even with a reasonable accommodation, he
will not be considered “qualified.”

Example 45: An employer, pursuant to an OSHA
regulation, requires employees to wear steel-toed boots. An employee
has severe burns on his feet and legs that prevent him from wearing
these types of boots, no accommodation is possible, and so he asks for
an exemption. The ADA does not prevent employers from complying with
other federal laws, including the Occupational Safety and Health Act
which requires employees working in certain jobs, industries, or
positions to wear particular items of clothing or protective gear.
Under these circumstances, the employer may insist that the employee
wear steel-toed boots, and because the employee cannot comply with this
rule he is not “qualified.”

The ADA may protect a “qualified” alcoholic who can meet the
definition of “disability.” The ADA does not protect an individual who
currently engages in the illegal use of drugs,82
but may protect a recovered drug addict who is no longer engaging in
the illegal use of drugs, who can meet the other requirements of the
definition of “disability,”83 and who is
“qualified.” As explained in the following questions, the ADA has
specific provisions stating that individuals who are alcoholics or who
are currently engaging in the illegal use of drugs may be held to the
same performance and conduct standards as all other employees.

25. May an employer require an employee who is an alcoholic
or who illegally uses drugs to meet the same standards of performance
and conduct applied to other employees?

Yes. The ADA specifically provides that employers may require
an employee who is an alcoholic or who engages in the illegal use of
drugs to meet the same standards of performance and behavior as other
employees.84 This means that poor job
performance or unsatisfactory behavior – such as absenteeism, tardiness,
insubordination, or on-the-job accidents – related to an employee’s
alcoholism or illegal use of drugs need not be tolerated if similar
performance or conduct would not be acceptable for other employees.

Example 46: A federal police officer is
involved in an accident on agency property for which he is charged with
driving under the influence of alcohol (DUI). Approximately one month
later, the employee receives a termination notice stating that his
conduct makes it inappropriate for him to continue in his job. The
employee states that this incident made him realize he is an alcoholic
and that he is obtaining treatment, and he seeks to remain in his job.
The employer may proceed with the termination.85

Example 47: An employer has a lax attitude
about employees arriving at work on time. One day a supervisor sees an
employee he knows to be a recovered alcoholic come in late. Although
the employee’s tardiness is no worse than other workers and there is no
evidence to suggest the tardiness is related to drinking, the supervisor
believes such conduct may signal that the employee is drinking again.
Thus, the employer reprimands the employee for being tardy. The
supervisor’s actions violate the ADA because the employer is holding an
employee with a disability to a higher standard than similarly situated
workers.

26. May an employer discipline an employee who violates a
workplace policy that prohibits the use of alcohol or the illegal use of
drugs in the workplace?

Yes. The ADA specifically permits employers to prohibit the use of alcohol or the illegal use of drugs in the workplace.86
Consequently, an employee who violates such policies, even if the
conduct stems from alcoholism or drug addiction, may face the same
discipline as any other employee. The ADA also permits employers to
require that employees not be under the influence of alcohol or the
illegal use of drugs in the workplace.

Employers may comply with other federal laws and regulations
concerning the use of drugs and alcohol, including: (1) the Drug-Free
Workplace Act of 1988; (2) regulations applicable to particular types of
employment, such as law enforcement positions; (3) regulations of the
Department of Transportation for airline employees, interstate motor
carrier drivers and railroad engineers; and (4) the regulations for
safety sensitive positions established by the Department of Defense and
the Nuclear Regulatory Commission.87

27. May an employer suggest that an employee who has
engaged in misconduct due to alcoholism or the illegal use of drugs go
to its Employee Assistance Program (EAP) in lieu of discipline?

Yes. The employer may discipline the employee, suggest that
the employee seek help from the EAP, or do both. An employer will
always be entitled to discipline an employee for poor performance or
misconduct that result from alcoholism or drug addiction. But, an
employer may choose instead to refer an employee to an EAP or to make
such a referral in addition to imposing discipline. However, the ADA
does not require employers to establish employee assistance programs or
to provide employees with an opportunity for rehabilitation in lieu of
discipline.

28. What should an employer do if an employee mentions drug
addiction or alcoholism, or requests accommodation, for the first time
in response to discipline for unacceptable performance or conduct?

The employer may impose the same discipline that it would for
any other employee who fails to meet its performance standard or who
violates a uniformly-applied conduct rule. If the appropriate
disciplinary action is termination, the ADA would not require further
discussion about the employee’s disability or request for accommodation.

An employee whose poor performance or conduct is attributable to the current illegal use of drugs is not covered under the ADA.88
Therefore, the employer has no legal obligation to provide a
reasonable accommodation and may take whatever disciplinary actions it
deems appropriate, although nothing in the ADA would limit an employer’s
ability to offer leave or other assistance that may enable the employee
to receive treatment.

By contrast, an employee whose poor performance or conduct is attributable to alcoholism
may be entitled to a reasonable accommodation, separate from any
disciplinary action the employer chooses to impose and assuming the
discipline for the infraction is not termination. If the employee only
mentions the alcoholism but makes no request for accommodation, the
employer may ask if the employee believes an accommodation would prevent
further problems with performance or conduct. If the employee requests
an accommodation, the employer should begin an “interactive process” to
determine if an accommodation is needed to correct the problem. This
discussion may include questions about the connection between the
alcoholism and the performance or conduct problem. The employer should
seek input from the employee on what accommodations may be needed and
also may offer its own suggestions. Possible reasonable accommodations
may include a modified work schedule to permit the employee to attend an
on-going self-help program.

Example 48: An employer has warned an
employee several times about her tardiness. The next time the employee
is tardy, the employer issues her a written warning stating one more
late arrival will result in termination. The employee tells the
employer that she is an alcoholic, her late arrivals are due to drinking
on the previous night, and she recognizes that she needs treatment.
The employer does not have to rescind the written warning and does not
have to grant an accommodation that supports the employee’s drinking,
such as a modified work schedule that allows her to arrive late in the
morning due to the effects of drinking on the previous night. However,
absent undue hardship, the employer must grant the employee’s request to
take leave for the next month to enter a rehabilitation program.

29. Must an employer provide a “firm choice” or “last
chance agreement” to an employee who otherwise could be terminated for
poor performance or misconduct resulting from alcoholism or drug
addiction?

An employer may choose, but is not required by the ADA, to
offer a “firm choice” or “last chance agreement” to an employee who
otherwise could be terminated for poor performance or misconduct that
results from alcoholism or drug addiction. Generally, under a “firm
choice” or “last chance agreement” an employer agrees not to terminate
the employee in exchange for an employee’s agreement to receive
substance abuse treatment, refrain from further use of alcohol or drugs,
and avoid further workplace problems. A violation of such an agreement
usually warrants termination because the employee failed to meet the
conditions for continued employment.89

30. May an employer tell a coworker that an employee is receiving a reasonable accommodation?

No. The ADA’s confidentiality provisions do not permit
employers to tell coworkers that an employee with a disability is
receiving a reasonable accommodation.

Practical Guidance: It is imperative that
managers be trained about how to respond to such questions because it
is reasonable to assume they may be asked questions by an employee’s
coworkers where the accommodation involves modification of a work
schedule or dress code, or any other change in the workplace that a
coworker may perceive as holding the employee with a disability to a
different performance or conduct standard. Employers already keep many
types of information confidential despite inquiries from their workers,
such as personnel decisions like the reason an employee left a job or
was transferred. This situation should be treated in similar fashion.
An employer could respond that she does not discuss one employee’s
situation with another in order to protect the privacy of all employees,
but she could assure the coworker that the employee is meeting the
employer’s work requirements.

An individual who believes that his employment rights have
been violated on the basis of disability and wants to make a claim
against an employer must file a “charge of discrimination” with the
EEOC. The charge must be filed by mail or in person with a local EEOC
office within 180 days from the date of the alleged violation. The
180-day filing deadline is extended to 300 days if a state or local
anti-discrimination law also covers the charge.90

The EEOC will notify the employer of the charge and will ask
for a response and supporting information. Before a formal
investigation, the EEOC may select the charge for its mediation program.
Participation in mediation is free, voluntary, and confidential.
Mediation may provide the parties with a quicker resolution of the case.

An individual who believes that his employment rights have
been violated on the basis of disability and wants to make a claim
against a federal agency must file a complaint with that agency. The
first step is to contact an EEO Counselor at the agency within 45 days
of the alleged discriminatory action. The individual may choose to
participate in either counseling or in Alternative Dispute Resolution
(ADR) if the agency offers this alternative. Ordinarily, counseling
must be completed within 30 days and ADR within 90 days.

At the end of counseling, or if ADR is unsuccessful, the
individual may file a complaint with the agency. The agency must
conduct an investigation unless the complaint is dismissed. If a
complaint contains one or more issues that must be appealed to the Merit
Systems Protection Board (MSPB), the complaint is processed under the
MSPB’s procedures. For all other EEO complaints, once the agency
finishes its investigation the complainant may request a hearing before
an EEOC administrative judge or an immediate final decision from the
agency.

This publication will use the term “ADA” to refer to both the
Americans with Disabilities Act and section 501 of the Rehabilitation
Act. This fact sheet provides only a brief review of the ADA’s
statutory framework as it is relevant to performance and conduct
standards. More information on the ADA and the Rehabilitation Act is
available at EEOC’s website, www.eeoc.gov.

4 42 U.S.C. § 12112(a) (2000); 29 C.F.R. § 1630.4 (2007).

5 42 U.S.C. § 12102(2) (2000); 29
C.F.R. § 1630.2(g) (2007). The ADA Amendments Act of 2008, signed into
law on September 25, retains the three-part definition of disability
but makes several significant changes to it with the intent that
“disability” be construed broadly. Among the most significant changes
are: (1) “substantially limits” no longer will be defined to mean either
“significantly restricted” or “severely restricted,” (2) major life
activities now include “major bodily functions” such as normal cell
growth, (3) the ameliorative effects of mitigating measures, other than
ordinary eyeglasses or contact lenses, cannot be considered in assessing
whether an individual has a disability, (4) impairments that are
episodic or in remission may be disabilities if they are substantially
limiting when active, and (5) an individual will meet the “regarded as”
prong of the definition if she can show that an employment decision (e.g.,
hiring, promotion, termination, discipline) was made because of an
actual or perceived physical or mental impairment, regardless of whether
the impairment limits or is perceived to limit a major life activity.
The new definition of “regarded as” does not cover an impairment that is
the basis of an employment decision if it is transitory (meaning that
it will last six months or less) and minor.

6 42 U.S.C. § 12111(8) (2000); 29 C.F.R. § 1630.2(m) (2007).

7See EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, at II (2.3) and IV (4.4), (1992), available atwww.adainformation.org/Employment.aspx [hereinafter TAM].

8 Additional information on how to
determine the essential and marginal functions of a position, and their
significance in determining if an individual with a disability is
“qualified,” can be found in 29 C.F.R. pt. 1630 app.
§ 1630.2(m)-(n) (2007). See alsoTAM, supra note 7, at II (2.3(a)).

Reasonable accommodation may be required for several reasons,
such as providing an applicant with a disability with an equal
opportunity to compete for a job or to allow an employee with a
disability equal access to a benefit or privilege of employment. This
publication focuses on the reasonable accommodation obligation only as
it applies to performance and conduct issues.

Examples of different types of reasonable accommodations can be found in, EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, (rev. Oct. 17, 2002), available at http://www.eeoc.gov/policy/docs/accommodation.html [hereinafter Reasonable Accommodation].
In addition, the EEOC has published documents on various disabilities
that address accommodations commonly used by individuals with these
medical conditions, including persons with psychiatric disabilities,
cancer, diabetes, blindness, deafness, intellectual disability (mental
retardation), and epilepsy. The EEOC also has published documents on
telework as a reasonable accommodation and accommodations commonly
provided in certain types of jobs (e.g., attorney positions, the food service industry, and health care jobs). All of these documents can be found at EEOC’s website, www.eeoc.gov.

14See 29 C.F.R. pt. 1630 app. §
1630.2(n) (2007) (“the inquiry into essential functions is not intended
to second guess an employer’s business judgment with regard to
production standards, whether qualitative or quantitative, nor to
require employers to lower such standards”). See alsoTAM, supra
note 7, at VII (7.7) (“An employer can hold employees with disabilities
to the same standards of production/performance as other similarly
situated employees without disabilities for performing essential job
functions”).

16SeeYindee v. CCH Inc.
458 F.3d 599, 602 (7th Cir. 2006) (employee with disability terminated
because of the reduction in the quantity and quality of her output as
well as her failure to demonstrate the problem-solving skills required
for her job); see alsoLeffel v. Valley Fin. Servs., 113 F.3d 787, 789, 795 (7th Cir.), cert. denied
522 U.S. 968 (1997) (employer lawfully terminated employee with
multiple sclerosis for several performance problems, including failure
to submit reports on a timely basis and failure to return phone calls).
Cf.Libel v. Adventure Lands of Am., Inc., 482 F.3d 1028,
1034 (8th Cir. 2007) (affirming summary judgment for employer who
terminated a sales and catering manager with multiple sclerosis because
she often made mistakes, including failing to request menus in a timely
fashion, selling more rooms than available, giving away rooms for free,
and not charging the correct amount).

In Example 3, the employer could have asked the employee if he
needed a reasonable accommodation to address the performance problems,
but the employer was not obligated to do so. An employee with a
disability generally has the responsibility to ask for a reasonable
accommodation. Seeinfra Question 14 and n.53 and accompanying text.

17SeeTAM, supra
note 7, at VII (7.7) (“An employer should not give employees with
disabilities “special treatment.” They should not be evaluated on a
lower standard . . . than any other employee. This is not equal
employment opportunity.”)

18Cf. Question 26 in EEOC, Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (March 25, 1997) available at www.eeoc.gov/policy/docs/psych.html [hereinafter Psychiatric Disabilities] (modifications in how supervisors provide guidance and feedback may assist employees in improving job performance).

19 An employer cannot penalize an
employee for work missed while the employee took a significant amount of
leave as a reasonable accommodation. SeeReasonable Accommodation, supra
note 11, at Question 19, Example A. An employer that accurately
evaluates the quality and quantity of work produced by an employee when
present is not penalizing the employee for work missed while taking
leave as a reasonable accommodation. An employer may wish to consider
postponing a performance evaluation or providing an interim one when a
significant amount of leave affects overall productivity.

20SeeTAM, supra
note 7, at VII (7.7) (“A disabled employee who needs an accommodation .
. . in order to perform a job function should not be evaluated on
his/her ability to perform the function without the accommodation”); cf. “Discrimination in Organizations,” supra
note 1, at 102 (“[P]erformance norms should permit some latitude for
expressing individuality and should not be arbitrarily based on a
singular cultural perspective. Utilizing outcome-based performance
measures rather than process-based performance measures may help
minimize discrimination . . .”) (cites omitted).

25SeeHill v. Kansas City Area Transp. Auth.,
181 F.3d 891, 894 (8th Cir. 1999) (request for reasonable accommodation
is too late when it is made after an employee has committed a violation
warranting termination); Contreras v. Barnhart, EEOC Appeal No.
01A10514 (February 22, 2002) (decision rejects employee’s claim that
employer should have known that a reasonable accommodation was not
working and provided another one, rather than disciplining employee for
poor performance, where employee failed to request a new accommodation
and two of her doctors had indicated that the employer should continue
providing the existing accommodation); cf. Fenney v. Dakota Minn. & E.R.R. Co.,
327 F.3d 707, 717 (8th Cir. 2003) (employee took demotion to avoid risk
of discharge for chronic tardiness after repeated requests for
reasonable accommodation related to work schedule were summarily
denied).

26SeeReasonable Accommodation, supra note 11, at Questions 35-36.

27Seeid. at Questions 5 and 36.

28Seeid. at Questions 5-8.

29 Seeid. at Question 9.

30SeeTAM, supra note 7, at VII (7.7).

31 Cf. id. (“An employer
may not discipline or terminate an employee with a disability if the
employer has refused to provide a requested reasonable accommodation
that did not constitute an undue hardship and the reason for the
unsatisfactory performance was the lack of accommodation.”) In this
Example, the employer may proceed with counseling Odessa, but if a
reasonable accommodation could have been provided that would help Odessa
resolve the performance problem (without causing undue hardship), any
subsequent disciplinary action by the employer for the same problem
would violate the ADA.

32Cf. Traylor v. Horinko,
EEOC Appeal No. 01A14117 (November 6, 2003) (employee failed to request
reasonable accommodation for a disability with respect to any aspect of
the PIP and instead waited until after he had failed the PIP and
received notice of termination).

33SeeTAM, supra
note 7, at VII (7.7) (“A disabled employee who needs an accommodation . .
. in order to perform a job function should not be evaluated on his/her
ability to perform the function without the accommodation”).

34 SeeReasonable Accommodation, supra note 11, at Question 10.

35 Seeid.

Federal agencies should follow their internal reasonable
accommodation procedures that outline how to handle a request for
reasonable accommodation and the time frames for doing so. A PIP should
generally be considered a situation requiring expedited handling of a
request. See Question 13 in EEOC, Policy Guidance on Executive Order
13164: Establishing Procedures to Facilitate the Provision of
Reasonable Accommodation (July 26, 2000) available at www.eeoc.gov/policy/docs/accommodation_procedures.html.

36SeeHumphrey v. Memorial Hosp. Ass’n,
239 F.3d 1128, 1138 (9th Cir. 2001) (after employer and employee
recognized that reasonable accommodation was not working, employer
refused to engage in interactive process to consider whether another
accommodation might be effective). Cf. Cutrera v. Board of Supervisors of La. State Univ.,
429 F.3d 108, 113 (5th Cir. 2005) (employee’s initial inability to
propose a reasonable accommodation does not permit an employer to
subvert the interactive process by terminating the employee before an
accommodation can be proposed or considered).

39SeeReasonable Accommodation, supra note 11, at Question 35. See also, Macy v. Hopkins Co. Sch. Bd. of Educ.,
484 F.3d 357, 366 (6th Cir. 2007) (ADA permits an employer to fire an
employee for conduct that results from a disability if that conduct
disqualifies the employee from his or her job); Gambini v. Total Renal Care, Inc., d/b/a DaVita, Inc.,
486 F.3d 1087, 1095 (9th Cir. 2007) (instructing jury that conduct
resulting from a disability is part of the disability, and not a
separate basis for termination, does not grant an employee absolute
protection from adverse employment actions based on disability-related
conduct because employers may show business necessity or direct threat
to justify their disciplinary actions); Sista v. CDC IXIS N. Am. Inc.,
445 F.3d 161, 172 (2d Cir. 2006) (citing to the EEOC’s Enforcement
Guidance on the ADA and Psychiatric Disabilities, the court stated that
the ADA does not “require that employers countenance dangerous
misconduct, even if [it] is the result of a disability”); Calef v. Gillette Co.,
322 F.3d 75, 87 (1st Cir. 2003) (ADA does not require that employer
retain an employee whose disability causes unacceptable behavior –
verbal and physical threats and altercations – that threatens the safety
of others); Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998) (ADA does not insulate emotional or violent outbursts blamed on an impairment); Siefken v. Arlington Heights,
65 F.3d 664, 666 (7th Cir. 1995) (termination appropriate for police
officer who failed to control his diabetes, resulting in his driving
erratically at high speed); cf. Mincer v. Alvarez, EEOC
Petition No. 03990021 (May 25, 2000) (although medical evidence clearly
established that employee’s depression and anxiety did not cause
insubordinate behavior, agency could have disciplined employee for this
behavior even if a nexus had been established because the ADA permits
employers to hold an employee with a disability to the same conduct
standards as other employees as long as those standards are job-related
and consistent with business necessity).

43See, e.g., Calef , supra
note 39, at 86 (it is job-related and consistent with business
necessity for a manager to be able to handle stressful situations
without making others in the workplace feel threatened by verbal and
physical threats and altercations); Grevas v. Village of Oak Park,
235 F.Supp.2d 868, 872 (N.D. Ill. 2002) (employee with depression
terminated, in part, because of inability to get along with coworkers as
evidenced by refusing to establish effective working relationships,
making unfounded allegations against coworkers, and making abusive
and/or inappropriate comments). Cf. Psychiatric Disabilities, supra
note 18, at Question 30 (example of a coworker courtesy rule that is
not job-related and consistent with business necessity as applied to a
warehouse worker who does not have regular contact with coworkers and
who, because of a psychiatric disability, refuses to engage in casual
conversation with coworkers and instead walks away when spoken to or
gives a curt response).

44SeeHammel, supra note 37, at 863.

45 Cf. Den Hartog, supra
note 38, at 1087 (permitting “employers carte blanche to terminate
employees with mental disabilities on the basis of any abnormal behavior
would largely nullify the ADA’s protection of the mentally disabled”).

46 Cf. Taylor v. Food World, Inc.,
133 F.3d 1419, 1424 (11th Cir. 1998) (grocery clerk position inherently
requires an ability to do the job without offending customers but
summary judgment inappropriate because factual issue exists as to
whether employee with autism could meet this requirement with or without
reasonable accommodation); Ray, supra note 42, at 1229
& n.4 (the ADA does not require an employer to maintain indefinitely
an employee who, because of Tourette Syndrome, uncontrollably subjects
the employer’s customers repeatedly to curse words and racial slurs).

49 SeeReasonable Accommodation, supra note 11, at Question 36. See alsoBuie v. Quad/Graphics, Inc.,
366 F.3d 496 (7th Cir. 2004) (eleventh-hour declaration of disability
does not insulate an unruly employee from the consequences of his
misdeeds); Conneen v. MBNA Am. Bank N.A., 334 F.3d 318, 331-33
(3d Cir. 2003) (despite repeated warnings about tardiness and the threat
of termination, employee failed to request a modified schedule until
after she was terminated); and Hill, supra note 25, at 894
(request for reasonable accommodation is too late when it is made after
an employee has committed a violation warranting termination).

56SeeCrandall, supra
note 42, at 898 (court rejected employee’s claim that his rude behavior
was so extreme as to put his employer on notice of a disability because
a layperson cannot be expected to infer the existence of a psychiatric
disorder given the general prevalence of rudeness).

57SeeReasonable Accommodation, supra note 11, at Questions 1-3, 40. See alsoEstades-Negroni v. Associates Corp. of N. Am.,
377 F.3d 58, 64 (1st Cir. 2004) (employee’s request for a reduced
workload and an assistant before being diagnosed with depression did not
constitute a request for reasonable accommodation); Russell v. TG Mo. Corp.,
340 F.3d 735, 742 (8th Cir. 2003) (employer’s knowledge that employee
has bipolar disorder insufficient to support claim that employer should
have known that employee’s request to leave work immediately because she
was “not feeling well” was related to her disability and therefore
employee could be charged with an unexcused absence); Gantt v. Wilson Sporting Goods Co.,
143 F.3d 1042, 1047 (6th Cir. 1998) (employer had no obligation to
speculate on an employee’s need for additional leave as a reasonable
accommodation despite knowing the employee had a serious injury and
wished to return to work eventually; employee never requested that her
leave be extended when employer-provided leave ran out); Crandall, supra
note 42, at 898 (court rejected employee’s claim that his rude behavior
was so extreme as to put his employer on notice of a disability because
a layperson cannot be expected to infer the existence of a psychiatric
disorder given general prevalence of rudeness). Cf. Wells v. Mutual of Enumclaw,
244 F.App’x 790, 791-92 (9th Cir. 2007) (unpublished) (employer had no
duty to provide reasonable accommodation to employee who had angry
outbursts due to Alzheimer’s Disease and related dementia because
employee never requested accommodation and employer’s knowledge of
disability did not mean it knew or had reason to know the disability
might be preventing employee from requesting accommodation).

59SeeTAM, supra
note 7, at VII (7.7) (“An employer must provide an employee with a
disability with reasonable accommodation necessary to enable the
employee to participate in the evaluation process”); see alsoReasonable Accommodation, supra note 11, at Question 14.

60 SeeDegnan, supra
note 37. Although the EEOC found a failure to provide reasonable
accommodation, the decision stated that this violation did not justify
Degnan’s physical and verbal rampage in response to the agency’s failure
to provide accommodation.

61 Cf. Atkins v. Apfel,
EEOC Appeal No. 02970004 (July 24, 2000) (agency failed to provide an
effective reasonable accommodation and called into question the validity
of its disciplinary actions when it denied request for an outside
interpreter and instead insisted that the deaf employee being
investigated for insubordination communicate through a staff
interpreter, despite the fact that the agency knew the two individuals
had an acrimonious relationship, the interpreter clearly had a stake in
the outcome of at least two of the disciplinary matters, and the
interpreter’s competence was at issue).

64 All medical information obtained by
an employer must remain confidential. This means an employer cannot
commingle medical information with other personnel information, and can
share medical information only in limited circumstances with
supervisors, managers, first aid and safety personel, and government
officials investigating compliance with the ADA. 42 U.S.C. §§
12112(d)(3)(B), (4)(C) (2000); 29 C.F.R. § 1630.14(b)(1)(2007). See also n.10 and accompanying text in Medical Examinations, supra note 63.

65SeeWilliams v. Motorola, Inc.,
303 F.3d 1284, 1291 (11th Cir. 2002) (employee’s recent belligerent
behavior, threats, and acts of insubordination were sufficient to
justify requiring a medical examination); Sullivan, supra
note 62, at 812 (employee’s misconduct and insubordination gave the
employer reason to seek further information about his medical fitness to
continue teaching, particularly where prior to requesting the
examination the employer sought input from a psychologist who suggested
that an examination was in order); Ward v. Merck & Co., 226
F.App’x 131, 138-40 (3d Cir. 2007) (unpublished) (employer’s request
that employee undergo a psychiatric examination was job-related and
consistent with business necessity where his behavior and job
performance deteriorated after he returned from medical leave for
treatment of a psychiatric illness).

66SeeSullivan, supra note 62, at 811; cf. Clark v. Potter,
EEOC Appeal No. 01992682 (November 20, 2001) (while employer may have
had grounds to discipline an employee who created a “toxic” work
environment over a period of several years by taking notes on coworkers,
providing supervisor with steady stream of (mostly baseless) complaints
about coworkers, and showing an unwillingness to cease these actions,
employer did not have a legal basis to order a psychiatric examination
because no evidence indicated that employee had a medical condition that
was causing him to perform poorly or posing a direct threat).

67SeeSista, supra
note 39, at 173 (employer not obligated to pursue alternative diagnosis
of employee’s condition and its failure to do so confirms that its
decision to fire employee did not depend on any perception of his mental
state).

69Cf. Ward v. Massachusetts Health Research Inst., Inc.,
209 F.3d 29, 35 (1st Cir. 2000) (while a fixed work schedule may be an
essential function of most positions it was not so here because evidence
showed that the employer had a flexible arrival policy permitting
employees to arrive at work anytime between 7 and 9 a.m. as long as they
worked a total of 7.5 hours each day and the employer failed to show
that the plaintiff’s job required him to arrive at a specific time each
day).

70Cf. Nunes v. Wal-Mart Stores, Inc.,
164 F.3d 1243, 1247 (9th Cir. 1999) (for summary judgment purposes,
employer failed to show undue hardship in granting additional leave to
employee who had been on medical leave for seven months and employer’s
policy permitted such leave for up to one year).

71SeeReasonable Accommodation, supra note 11, at Questions 17, 22; cf. Holly v. Clairson Indus., L.L.C.,
492 F.3d 1247, 1258, 1260 (11th Cir. 2007) (because an employer cannot
avoid its reasonable accommodation obligation by designating all
functions as essential a factual issue existed as to whether the
company’s strict punctuality policy could be modified as a reasonable
accommodation for an employee with paraplegia whose job did not require
strict punctuality and who always made up the time); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr.,
155 F.3d 775, 782 (6th Cir. 1998) (uninterrupted attendance not deemed
an “essential function” because that would relieve an employer from
having to provide unpaid leave as a reasonable accommodation).

73 See, e.g., Brenneman v. MedCentral Health Sys.,
366 F.3d 412, 420 (6th Cir. 2004), cert. denied, 543 U.S. 1146 (2005)
(pharmacist with diabetes absent at least 109 times over a 5-year period
was unqualified because of excessive absenteeism); Conneen, supra
note 49, at 331 (termination for excessive tardiness lawful where
employee, who once was given a modified schedule as a reasonable
accommodation, failed to request resumption of this accommodation when
she again began arriving late due to morning sedation and instead gave
her employer reasons unrelated to her disability for the late arrival); Amadio v. Ford Motor Co.,
238 F.3d 919, 928 (7th Cir. 2001) (employer is not required to give an
open-ended schedule to allow an employee to come and go as he pleases); Buckles v. First Data Resources, Inc.,
176 F.3d 1098, 1101 (8th Cir. 1999) (employee with numerous absences
unable to meet essential function of regular and reliable attendance); Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994) (an employee is not qualified if he has prolonged, frequent, and unpredictable absences); Quinn v. Veneman,
EEOC Appeal No. 01A34982 (December 21, 2004) (termination of employee
with depression for repeated unexcused late arrivals was lawful where
employee failed to provide medical documentation justifying any change
in attendance requirements and evidence showed supervisor met with
employee at least 20 times over a two-year period to discuss attendance
problems); Lopez v. Potter, EEOC Appeal No. 01996955 (January 16,
2002) (employer did not have to excuse employee’s persistent tardiness
due to alcoholism and thus its use of progressive discipline,
culminating in termination, was lawful).

75 See, e.g. Rask v. Fresenius Med. Care N. Am.,
509 F.3d 466, 470 (8th Cir. 2007) (dialysis technician who admitted
that she could not come to work on a regular and reliable basis was not
qualified); Brenneman v. MedCentral Health Sys., 366 F.3d 412, 420 (6th Cir. 2004), cert. denied, 543 U.S. 1146 (2005) (“excessive absenteeism” over several years rendered employee unqualified); Haschmann v. Time Warner Entertainment Co. L.P.,
151 F.3d 591, 602 (7th Cir. 1998) (“it is not the absence itself but
rather the excessive frequency of an employee’s absences in relation to
the employee’s job responsibilities” that may determine if she is
qualified); and Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994) (an employee is not qualified if she has prolonged, frequent, and unpredictable absences).

76 While the EEOC and a minority of
courts have focused on extended or indefinite leave as a matter of undue
hardship, almost all circuit courts have instead held that indefinite
leave is not a reasonable accommodation. CompareReasonable Accommodation, supra
note 11, at Question 44 (if an employer is able to show that the lack
of a fixed return date causes an undue hardship, then it can deny the
leave) and Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d
638, 648-50 (1st Cir. 2000) (plaintiff’s request for a two-month
extension of leave after 15 months of medical leave could be denied only
if employer showed undue hardship) withWood v. Green,
323 F.3d 1309, 1314 (11th Cir. 2003) (employer’s granting of leave over
the years showed that employee’s disability was not improving and thus
his repeated requests had become an unreasonable request for indefinite
leave and a confirmation that he could not currently, or in the near
future, be expected to perform his essential functions); Pickens v. Soo Line R.R.,
264 F.3d 773, 777-78 (8th Cir. 2001) (request for leave was not
reasonable where employee took leave 29 times in a 10-month period and
sought to be allowed to work when he wanted); Walsh v. United Parcel Serv.,
201 F.3d 718, 727 (6th Cir. 2000) (where an employer has provided
substantial leave – here 18 months of paid and unpaid leave – a request
for additional leave of a significant duration with no clear prospect
for returning to work is not a reasonable accommodation); Walton v. Mental Health Assoc. of Southeastern Pennsylvania,
168 F.3d 661, 671 (3d Cir. 1999) (while unpaid leave can be a
reasonable accommodation, an employer is not required to provide
repeated extensions of such leave); and Corder v. Lucent Tech., Inc.,
162 F.3d 924, 928 (7th Cir. 1998) (employer does not need to provide
indefinite leave as a reasonable accommodation for employee who has
frequent, unpredictable absences, especially where employer has provide
extended leave over a long period of time and other reasonable
accommodations to give the employee every opportunity to perform her
job).

80Compare Conneen, supra
note 49, at 329 (employer cannot merely state that punctuality is
important where no evidence demonstrates this proposition, such as
tardiness affected quality of employee’s performance or bank operations
were harmed by her late arrival); withEarl v. Mervyns, Inc.
207 F.3d 1361, 1366 (11th Cir. 2000) (employer’s handbook emphasized
the importance of punctuality, it instituted a comprehensive system of
warnings and reprimands for violation of the policy, and in this
particular case, employee’s job required that she report punctually at a
certain time because she prepared the store before the arrival of
customers and no other employees were assigned to do those duties).

81 This publication does not address
the extent to which an employer may need to modify dress and grooming
standards to comply with Title VII of the Civil Rights Act of 1964 (e.g., to avoid discrimination on the basis of race or as a reasonable accommodation for an employee’s religion).

82 42 U.S.C. § 12114(a) (2000) (“the
term ‘qualified individual with a disability’ shall not include any
employee or applicant who is currently engaging in the illegal use of
drugs, when the entity acts on the basis of such use”); see also
42 U.S.C. § 12210(a) (2000) (“the term ‘individual with a disability’
does not include an individual who is currently engaging in the illegal
use of drugs, when the covered entity acts on the basis of such use”).
The ADA contains several other exclusions from the definition of
“disability” (e.g., kleptomania, compulsive gambling, and sexual disorders such as voyeurism and pedophilia). See 42 U.S.C. § 12211.

83 42 U.S.C. § 12210(b) (2000); see also EEOC, Compliance Manual Section on Definition of the Term Disability, Sec. 902.6 (March 14, 1995), available at www.eeoc.gov/policy/docs/902cm.html.

84 42 U.S.C. § 12114 (c)(4) (2000).
The ADA definitions of “disability” may include a person who is an
alcoholic or recovering alcoholic, as well as a person who: (1) is a
recovered drug addict, (2) has ceased engaging in the illegal use of
drugs, and (3) is either participating in a supervised rehabilitation
program or has been rehabilitated successfully. See 42 U.S.C.
§12210(b) (2000). Regardless of coverage under the ADA, an individual’s
alcoholism or drug addiction cannot be used to shield the employee from
the consequences of poor performance or conduct that result from these
conditions.

90 Many states and localities have
disability anti-discrimination laws and agencies responsible for
enforcing those laws. EEOC refers to these agencies as “Fair Employment
Practices Agencies (FEPAs).” Individuals may file a charge with either
the EEOC or a FEPA. If a charge filed with a FEPA is also covered
under the ADA, the FEPA will “dual file” the charge with the EEOC but
usually will retain the charge for investigation. If an ADA charge
filed with the EEOC is also covered by a state or local disability
discrimination law, the EEOC will “dual file” the charge with the FEPA
but usually will retain the charge for investigation.